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Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: November 28, 2020

Affidavit Attesting to the Contents of Business Records Without Attaching the Records Inadmissible Hearsay

On November 12, 2020, the Second Department issued a decision in Countrywide Home Loans Servicing, L.P. v. Vorobyov, 2020 NY Slip Op. 06492, holding that an affidavit attesting to the content of business records without attaching them was inadmissible hearsay, explaining:

Generally, in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default. When a defendant has placed standing in issue, the plaintiff also must establish standing as part of its prima facie case. A plaintiff has standing in a mortgage foreclosure action when it is the holder or assignee of the underlying note at the time the action is commenced.

In support of its motion, the plaintiff, to establish its standing to commence this action, submitted the note, which contained an undated endorsement in blank, and an affidavit from Jamie Cooper, an officer of the loan servicer. Cooper stated, based upon his review of the servicer’s books, records, and files relating to the subject loan, that the plaintiff received the original wet ink Note on or about March 26, 2007 and the original recorded Mortgage shortly thereafter, and that the plaintiff had physical possession of the Note at the time the action was commenced on April 3, 2009. However, Cooper based his statements upon his review of unspecified business records without attaching or otherwise incorporating such business records to his affidavit. Evidence as to the content of business records is admissible only where the records themselves are introduced; without their introduction, a witness’s testimony as to the contents of the records is inadmissible hearsay. Thus, the assertions by Cooper as to the contents of records were inadmissible without the submission of the records themselves. The plaintiff did not attach a copy of the note to the complaint when commencing this action. Therefore, the plaintiff failed to establish, prima facie, that it had standing to commence this action, and we agree with the Supreme Court’s determination denying those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against Mykhaylo and Iryna and dismissing their affirmative defenses related to standing.

(Internal quotations and citations omitted).

The hearsay rule generally limits the evidence a party can use to evidence based on first-hand knowledge. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have questions about New York’s rules of evidence.

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Posted in Commercial, Evidence
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